Bundy grazing battle more complex than first blush

Nevada Cattle Rancher Standoff Far More Complex than Simple LawbreakingCliven Bundy claims that he inherited “pre-emptive grazing rights’ on federal land because his ancestors kept cattle in the Virgin Valley since 1877, before the Department of the Interior was created. However, by continuing to graze his livestock on federal land for over 20 years after he stopped paying fees in 1993, Bundy may have acquired “prescriptive rights;” the right to an easement over property after trespassing on it for several years.

By Rachel Alexander | April 23, 2014Selous Foundation for Public Policy & Research

Some legalistic conservatives aren’t jumping to the defense of Nevada cattle rancher Cliven Bundy and his recent standoff with the federal government. They’d rather focus on the fact that he broke federal law by not paying taxes for permitting his cattle to graze on 150 square miles of scrub desert overseen by the federal government. Such a shallow analysis fails to take into account the facts during the years leading up to the showdown, as well as other laws that may likely exonerate him.

Bundy paid grazing taxes until 1993, when federal grazing rules were restricted in the Gold Butte and Bunkerville areas of Nevada for the dubious reason of protecting the desert tortoise. The desert tortoise is listed as vulnerable, not endangered, despite virtually every media article hysterically referring to it as “endangered.” It is not clear how grazing cattle threatens the desert tortoise. Even more bizarre, it has been revealed that the U.S. Bureau of Land Management (BLM) has shot many of the desert tortoises it claims to protect.

Infuriated by the federal government instituting these draconian environmental regulations in 1993, Bundy insisted on paying grazing fees to local government instead of the feds, so his money wouldn’t be used against him, but Clark County declined. After that, Bundy says the federal government overreach drove every other rancher in the area out of business except him.

He owns the last large cattle ranch remaining in Clark County. The feds now own 84 percent of the land in Nevada, and large portions of other Western states, including a massive 96 percent of the land in Alaska.

Bundy’s friction with the federal government is nothing new. In the 1970s, cattle ranchers in the Western states fought with the federal government over land in what became known as the Sagebrush Rebellion.

It was widely believed that President Jimmy Carter instigated it, by purposely punishing ranchers in the states that didn’t vote for him by “halting work on vital water projects, hiking fees for grazing cattle on public land and attempting to break up large farms irrigated by federal water systems.” Former president Ronald Reagan ran for president backing the rebellion, saying in a campaign speech, “I happen to be one who cheers and supports the Sagebrush Rebellion. Count me in as a rebel.”

Bundy claims that he inherited “pre-emptive grazing rights” on federal land because his ancestors kept cattle in the Virgin Valley since 1877, before the Department of the Interior was created. “My forefathers have been up and down the Virgin Valley ever since 1877. All these rights I claim have been created through pre-emptive rights and beneficial use of the forage and the water. I have been here longer. My rights are before the BLM even existed,” Bundy told KLAS-TV in Las Vegas. Bundy has also argued that Nevada’s open range statute excuses his trespass.

So far, the federal courts have sided with BLM against him on both of these legal arguments, very likely due to a cozy relationship between the two branches of government under the liberal Obama administration.

However, by continuing to graze his livestock on federal land for over 20 years after he stopped paying fees in 1993, Bundy may have acquired “prescriptive rights;” the right to an easement over property after trespassing on it for several years. Columnist Ben Swann interviewed Montana cattle rancher Todd Devlin about the possibility. Devlin asked the BLM if Bundy had acquired prescriptive rights, and was told that the agency is concerned he may have.

The BLM could have attached a lien to the cattle, instead of spending $3 million forcibly rounding them up. The reason the BLM didn’t try to remove the cattle peaceably this way through the court system may be because it wouldn’t have won due to Bundy’s prescriptive rights.

Instead, the BLM forcibly started seizing Bundy’s cattle, and destroyed several of them. Former judge Andrew Napolitano told Fox News, “The draconian, authoritarian way that the government is going after Mr. Bundy is obviously to try and scare him, and scare ranchers, and send a message which is utterly un-American and not consistent with a free people.” Sen. Dean Heller (R-NV) spoke out during the standoff, “I told him [BLM Director Neil Kornze] very clearly that law-abiding Nevadans must not be penalized by an over-reaching BLM.”

Nevada Governor Brian Sandoval also sided with Bundy, saying, “No cow justifies the atmosphere of intimidation which currently exists nor the limitation of constitutional rights that are sacred to all Nevadans. The BLM needs to reconsider its approach to this matter and act accordingly.”

In recent years, Sen. Harry Reid (D-NV) has attempted to seize land in Nevada and award it to his major political contributors. Since the head of the BLM is a former high-level staffer for Reid, it appears very likely that Reid masterminded the Bundy cattle siege, in a type of eminent domain. One anonymous source who has lived in the area for 35 years says the BLM is using the desert tortoise as a pretext to grab the land and seize its water rights.

There have been several cases similar to Bundy’s in recent years. Rancher Wayne Hage won his battle against the government by arguing that he had the right to graze his cattle within two miles of a water source he had developed. Bundy’s case may yet be resolved in a manner such as this.

This dispute has sparked a debate over the federal government’s massive land grabs and intrusions into states’ rights. Nevada Assemblywoman Michele Fiore, who helped Bundy get his livestock back, said, “It’s time for Nevada to stand up to the federal government and demand the return of the BLM lands to the people of Nevada.” At a town meeting, Bundy declared, “It’s about freedom and liberty and our Constitution … and above all it’s about our policing power. Who has policing power today?” It was local law enforcement that finally broke the standoff, not the BLM. Las Vegas Metro Deputy Chief Tom Roberts ended it by announcing that Bundy’s cattle would be returned within 30 minutes.

Bundy may not be a sympathetic person, in part due to his statements about not recognizing the federal government and holing up with his guns. But Americans are fed up with the federal government’s expansion and overreach, and so even though Bundy was technically breaking a law, patriots stood with him because this was a clear example of how government expansion had forced out hundreds of innocent ranchers over the years. Bundy broke the law, but only because the law had become so oppressive it was destroying the livelihood of ranchers in the name of radical environmentalism and crony capitalism.

Sen. Rand Paul (R-KY) introduced legislation last year that would have given state governments more control over federal land and the Endangered Species Act. Considering this has been taking place since the Sagebrush Rebellion in the 1970s, it is long overdue for local and state governments to take back control of land seized by the federal government.

Rachel Alexander is the founder of the Intellectual Conservative and an attorney. Ms. Alexander is also a contributor to SFPPR News & Analysis.